lawtechTalk helps you understand valuable
Internet and Web 2.0 technologies and how to incorporate them into your law practice
to maximize efficiency and save time and money.

lawtechTalk brings the most up-to-date information directly to you through speaking engagements, webinars and personal consultations. Nicole Black, a practicing attorney and legal technology enthusiast, will be your guide.

Contact information and additional details about the services offered by lawtechTalk can be found here.

The first episode of lawtechTalk is now available.

This screencast(a recording of computer screen output along with video of me discussing what is seen)will
focus on some of the best free or low cost web-based "to-do" list and
reminder applications. We'll explore the main features of some of the
most useful
and innovative "to-do" applications to help you figure out which will
best meet your needs.

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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A Confounding Victory

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment —the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

—ARIZONA V. GANT, NO. 07-542

Last week, on April 21, the U.S. Supreme Court decided Arizona v. Gant, a decision being touted as a constitutional victory by privacy rights advocates.

The court held that arresting officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if the officers have a reasonable belief that the vehicle contains evidence of the crime for which the person is being arrested.

The decision is both fascinating and a profound example of why Fourth Amendment jurisprudence is worth little more than the paper on which it’s written.

What is most fascinating about the decision is the unlikely judicial alliances found in the 5-4 decision. The majority opinion was authored by Justice Stevens, who was joined by the rather motley crew of Justices Scalia, Thomas, Souter and Ginsberg. Chief Justice Roberts and Justices Kennedy, Alito and Breyer dissented.

That Justice Scalia joined the majority in limiting the scope of a search incident to arrest is, in and of itself, unusual. For so-called “liberal” Fourth Amendment champions such as myself, however, Justice Scalia’s concurring opinion is all the more surreal.

First, Justice Scalia indicated that he would go further than the majority and hold that a search of a vehicle incident to arrest is reasonable only when the police have probable cause to believe the vehicle contains evidence of a crime. Justice Scalia explained that officer safety procedures dictate that the arrestee should be removed from the car prior to the arrest, therefore the arrestee should virtually never be within reaching distance of the passenger compartment, rendering that exception unnecessary.

Even more confounding is that, when discounting that exception, Justice Scalia acknowledged that police actions do not occur in a vacuum. He explained that the exception allowing officers to search for weapons within reach of the passenger compartment “leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search.”

And, with that simple statement, Justice Scalia broke the golden rule of Fourth Amendment jurisprudence, forever changing the course of Constitutional Law classes across this great land. Hypothetical factual scenarios will necessarily have to be rooted in reality from now on.

No longer will robot-like police officers, devoid of emotion or ulterior motives star in hypothetical arrests. Rather, the factual scenarios will take into account that law enforcement officers are just as human as the rest of us and enter the field carrying their own set of psychological baggage: ripe with prejudices and under pressure, both professional and personal.

Hypothetical examples will be grounded in reality, with the full knowledge that police officers not only are tempted to, but actually do, alter the sequence of events occurring before an arrest to conform to current Fourth Amendment jurisprudence. Evidence obtained illegally ultimately is rendered admissible after creative narration in police reports.

That is the reality, rarely acknowledged, when carefully scripted, fictional scenarios reach the hallowed halls of the U.S. Supreme Court.

That Justice Scalia, of all people, acknowledged that fact, makes this particular victory all the more confounding.

A type of estoppel that prevents a person from asserting something when
she had both the duty and the opportunity to speak up earlier, and her
silence put another person at a disadvantage. For example, Edwards'
Roofing Company has the wrong address and begins ripping the roof from
Betty's house by mistake. If Betty sees this but remains silent, she
cannot wait until the new roof is installed and then refuse to pay,
asserting that the work was done without her agreement.

This week's Daily Record column is entitled "Actions Speak Louder Than Words."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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I’ve said it before and I’ll say it again: Technological change is occurring at an unprecedented rate and is indisputably changing the way that the business world functions.

Nevertheless, well-established, mammoth institutions move forward blindly, attempting to conduct business as usual despite the uncomfortable knowledge that the building blocks upon which their businesses are based are crumbling at their very foundations.

Just last week, two seemingly unrelated and well- established institutions, cable television and the legal profession, reluctantly gave an inch to the winds of change.

Not surprisingly, however, after acknowledging that some form of adaptation was required, both continued to cling unsuccessfully to the formulas that always worked for them in the past.

First, Time Warner Cable backed off plans to use Rochester as a test market for a consumption-based billing trial for Internet customers. Earlier, it caused an uproar when it announced its intent to implement the plan in September.

As a direct result of the public backlash, on April 16, Time Warner Cable CEO Glenn Britt announced that the company would cancel consumption-based billing trial:

It is clear from the public response over the last two weeks that there is a great deal of misunderstanding about our plans to roll out additional tests on consumption based billing. As a result, we will not proceed with implementation of additional tests until further consultation with our customers and other interested parties, ensuring that community needs are being met.

Time Warner, however, stubbornly resisted the tide of change and refused to rule out a consumption-based plan in the future.

Similarly last week, law firm giant Wombyle Carlyle, when announcing layoffs and salary reductions of associates and staff, issued an internal memorandum with language that could have been copied directly from the book that I discussed last week, Richard Susskind’s “The End of Lawyers?”:

The world of law firms … has changed forever. Clients are increasingly focused on managing the costs of all legal matters. … In many instances, price will control the decision of which of several competing law firms will be hired. Successful firms will be those who continu- ously strive to improve efficiencies and find ways to minimize costs without reducing the overall quality of the services they provide. That of course means that firms will need fewer, but more highly skilled and trained personnel at all levels. Simply stated, like the business world in general, law firms must be able to do more with less.

That language indicates that Wombyle Carlyle perceives the enormous changes occurring in the legal industry and is attempting to adapt its practices accordingly, but the decision to reduce costs by eliminating the very positions that constitute the foundation of the firm belie their commitment to the forward thinking concepts embodied in the memo.

Like Time Warner, Wombyle Carlyle seemingly understands that change is inevitable while refusing to take advantage of the opportunity presented by that very knowledge. Rather than using that knowledge to proceed innovatively, both institutions desperately are seeking ways to maintain the framework in which they always functioned.

Time Warner must comprehend that, in just a few years, most non-commercial Internet users will be completely mobile rather than home-based, and will want access to the Internet no matter where they are.

Instead of clinging to and preserving a dying industry —cable television —Time Warner would be wise to offer consumers new, more flexible ways to use their services.

Wombyle Carlyle similarly would be wise to revise the firm’s infrastructure from the ground up. Creating a less hierarchical and more collaborative, cooperative environment would strengthen the firm, making it more adaptable.

Lopping off the support positions at the bottom of the hierarchy makes no sense, and leaves equity partners teetering at the top of a rigid and failing system.

Forward-thinking words are a start, but only when such words are followed by forward-thinking actions do they indicate true progress.

promissory estoppel
A type of estoppel that prevents a person who made a promise from
reneging when someone else has reasonably relied on the promise and
will suffer a loss if the promise is broken. For example, Forrest tells
Antonio to go ahead and buy a boat without a motor, because he will
sell Antonio an old boat motor at a very reasonable price. If Antonio
relies on Forrest's promise and buys the motorless boat, Forrest cannot
then deny his promise to sell Antonio the motor at the agreed-upon
price.

(2) A legal doctrine that prevents the relitigation of facts or
issues that were previously resolved in court. For example, Alvin loses
control of his car and accidentally sideswipes several parked cars.
When the first car owner sues Alvin for damages, the court determines
that Alvin was legally drunk at the time of the accident. Alvin will
not be able to deny this fact in subsequent lawsuits against him. This
type of estoppel is most commonly called collateral estoppel.

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